V ctor Manuel Arcas Ruiz
Major of Guardia Civil
PhD student in the UNED Doctoral program
of Law and Social Sciences
Master's Degree in Road and Traffic Safety
THE APPROPRIATE CRIMINALISATION FOR THE PETROL USED IN DRUG TRAFFICKING
THE APPROPRIATE CRIMINALISATION FOR THE PETROL USED IN DRUG TRAFFICKING
Summary: 1. INTRODUCTION. 2. WHAT IS "PETAQUEO"? 3. POSSIBLE CRIMINAL OFFENCES FOR "PETAQUEO". 3.1 Crime against public health. 3.2 Crime of smuggling. 3.3 Crime of belonging to a criminal organisation. 3.4. Crime of havoc. 3.5. Crime of creating a serious risk to road safety. 3.6. Crime of possession or holding of explosives. 3.7. Crime against natural resources and the environment. 4. COMPARATIVE LAW BETWEEN THE COLONY OF GIBRALTAR AND THE KINGDOM OF SPAIN. 5. SHOULD "NARCO-PETROL AND "PETAQUEO" BE CRIMINALISED? 6. CONCLUSIONS. 7. PROPOSAL. 8. BIBLIOGRAPHY
Resumen: El art culo versa sobre el suministro ilegal de combustible gasolina destinado a ser empleado en embarcaciones semirr gidas de alta velocidad. Estas embarcaciones, policial y period sticamente han sido bautizadas como narcolanchas[1] . Dicha gasolina, igualmente bautizada como narcogasolina , es parte vital de la log stica necesaria para el tr fico de hach s desde el norte de frica. Adem s, tambi n es la desencadenante de una serie de peligros, en especial, aquellos que afectan a bienes jur dicos tan importantes como la vida de las personas, el propio h bitat, y por ende el medio ambiente.
En el trabajo se ha estudiado si el Derecho Penal Sustantivo espa ol tiene capacidad y estructura suficiente para constituirse en una herramienta jur dica adecuada y facilita que Fiscales, Jueces, y Fuerzas y Cuerpos de Seguridad (FCS), puedan combatir el fen meno de la narcogasolina , o, por el contrario, resulta necesario que el poder legislativo prevea una modificaci n del derecho penal para reprimir dicha conducta peligrosa e il cita.
Abstract: The present work deals with the illegal supply of fuel, gasoline , intended to be used in high-speed rigid inflatable boats. These boats have been commonly referred to as "narco-boats" in both law enforcement and journalism contexts. This gasoline, known as "narco-gasoline," is a vital part of the logistical operations involved in the trafficking of hashish from North Africa. Additionally, it poses a series of risks and dangers, particularly those affecting important legal assets such as human life, the natural habitat, and consequently, the environment.
The study examines whether Spanish substantive law criminal code has the necessary capacity and structure to serve as an adequate legal tool that enable prosecutors, judges, and law enforcement services to combat the phenomenon of "narco-gasoline, or it is the opposite and our penal law requires to be amended by the legislative authorities in order to repress this dangerous and illicit conduct.
Palabras clave: gasolina, estragos, seguridad vial, riesgos, narcotr fico.
Keywords: gasoline, havoc, traffic safety, risks, drug trafficking.
1 Introduction
This article arises from a situation that has arisen in the Campo de Gibraltar, but which has spread to other provinces other than Cadiz, or even autonomous regions, as will be demonstrated later on.
Figure 1.
A van with a hundred jerry cans found in Isla Cristina
e
It concerns the fuel named as "narco-petrol",[2] i.e. large quantities of petrol[3] stored in places with a high population rate, without even the minimum of safety conditions, and also "transported in private vehicles of individuals not designed for that purpose, and with absolute disregard for safety regulations, mainly those contained in the European Agreement on the Carriage of Dangerous Goods by Road (ADR) (Arcas Ruiz, 2022, p. 8).
Private individuals who carry out such transport are also not authorised to carry out this activity." (Arcas Ruiz, 2022, p g. 8).
Figure 2.
Rear of a three-engined boat
with 425 horsepower (hp) per engine.
This fuel is used to power the engines of "narco-boats", also known as "rubber dinghies",[4] or their acronym in English Rigid inflatable boat, (RIB). The latest versions of these "RIBs", as they are also known, come in four- or three-engine versions, each with up to 425 hp.
The aforementioned hydrocarbon is also sometimes even found inside private homes in densely populated inhabited places.
Figure 3.
Fuel
found by Guardia Civil in a storage room in the port of La Atunara
La L nea de la Concepci n.
The "narco-boats no longer dare approach the coast except to unload the goods." Since being made illegal in 2018, narco-boats entering Spanish waters can be directly seized. Faced with this situation, they use auxiliary boats to bring them supplies, petrol, and for crew changes, explains Encinas - Asociaci n Unificada de Guardias Civiles - AUGC.(Garc a Serrano, 2019)"
In this context, the "narco-boats" remain at sea for weeks. Because they have to travel long distances to avoid police surveillance and pursuit, they need large quantities of petrol. The suppliers of this fuel have been called and are known in popular, police and journalistic jargon as "petaqueros".
Figure 4.
Narco-boat loaded with jerry cans of petrol.
This logistical activity, "known as (petaqueo), has resulted in the seizure of large quantities of petrol by the (FCS) which have led to the charging of crimes such as: against public health, other high-risk crimes caused by explosives and other agents," (Europa press, 2021)and against road safety, with the result of these police proceedings in the judicial process being certainly unsuccessful.
In the paper, a normative analysis will be carried out on how these logistical "narco-petrol supply" actions could be qualified. This is from a criminal point of view, and the administrative route is not the object of study, although it is mentioned briefly.
Finally, it will be seen whether Spanish substantive criminal law is adequate to criminalise and prevent the "petaqueo", or, on the contrary, it is not; whether or not legislative reform is advisable, and whether the "petaqueo" can be successfully combated outside the Criminal Code (CC).
2 What is "Petaqueo"?
The definition or the name by which journalistic and police jargon has dubbed the action of supplying "narco-petrol" to "narco-boats".
Figure 5.
Mother ships - tankers
The activity is carried out from the petrol stations[5] to the high-speed boats that remain at sea without touching land except for the purpose of smuggling. Those who carry it out are known in police and journalistic jargon as "petaqueros",[6] being considered a "quarry"; "the new occupation of the apprentice drug trainees in the Campo de Gibraltar" (Fern ndez F. , 2020).
The Deputy Directorate of Customs Surveillance (DAVA) reports that the number of people supplying fuel by sea to drug traffickers is on the rise, and says that "petaqueo" alone is not a crime, and can earn a few thousand euros in one night for people with no income, no job and no assets. As of today, there is already a large infrastructure of recreational vehicles supplying fuel to the "narco-boats" (Pressreader, 2021).
Figure 6.
Narco-boats
waiting to load or unload drugs
 |
Figure 7.
People
loading jerry cans of petrol on "petaqueras" boats.
 |
In short, "petaqueo" is a practice that is part of the logistical apparatus of drug trafficking operations. According to the press, they could be considered "floating petrol stations".
The "petaqueros", as is well known, are found in the lower echelons and are easily replaceable (Almoguera, 2021).
At the Conference on Analysis and Prospects of Drug Trafficking in the province of Cadiz, held at the Men ndez Pelayo International University, in the town of La L nea de la Concepci n (Cadiz), on Wednesday afternoon, 10 May 2023, which the present author had the pleasure of attending, the Commander of the Civil Guard (GC) Acting Head of the Regional Centre for Analysis and Intelligence against Drug Trafficking (CRAIN), of Guardia Civil Zone of Andalusia, indicated that the fight against the phenomenon of "narco-petrol and Petaqueo", are absolutely vital, in fact, since the beginning of the Carteia Plan,[7] 870,457 litres of fuel have been seized[8] (Villag mez Mu oz, y otros, 2023).
To this should be added the litres seized by the National Police (PN), various local police forces, and the DAVA, plus those seized by the GC and for various reasons not linked to the Carteia Plan managed by the CRAIN.
In this conference, the PN, the GC, the DAVA, the Anti-drugs Prosecutor's Office, the University world and the Social Platform of Campo de Gibraltar[9] participated, both on the part of the GC with the Colonels at its head, of the Cadiz and Algeciras Commanders respectively, as well as on the part of the Deputy Anti-drugs Prosecutor of the C diz-Ceuta Public Prosecutor's Office and Andalusia Coordinator, underlined the need to criminalise "petaqueo" (Villag mez Mu oz, y otros, 2023).
Figure 8.
Petrol jerry cans seized by Guardia Civil
The Acting Head of the CRAIN stressed that police
pressure has meant that criminal organisations need much more
"narco-petrol" to be able to operate and bring hashish into Spain,
leaving one of his images "Illustration number 08" of his
intervention exclusively to highlight the problem. The President of the
Coordinadora Alternativas, also lamented that he has proposed the
criminalisation of narco-petrol on many occasions, and that this has not been
put into effect (Villag mez Mu oz, y otros, 2023).
Both Guardia Civil and National Police are aware that the origin of "narco-petrol" is to be found in petrol stations, and for this reason, actions are being carried out in this sense. The following news item published in the press serves as an example: "One of the most important 'petrol stations' for narco-boats in Andalusia has been dismantled in Granada, with 14 people arrested" (El Independiente de Granada, 2020).
With a certain vindictive literature, the press echoes the activity of the petaqueo and publishes the following: "Narco-petrol stations: more than 5,000 euros in one trip and it is not a crime in Spain. This is a parallel and indispensable business for criminal organisations to make their hashish shipments" (Europasur Campo de Gibraltar, 2021).
Such is the importance of "narco-petrol" for drug trafficking that on 21 February of this year, after Guardia Civil had seized sixteen thousand litres of "narco-petrol", it was subsequently stolen in the town of Estepona. See headline below: "The impunity of the narco: stealing 16,000 litres of petrol seized two days earlier by Guardia Civil" (Sempere, 2024).
In fact, the author of the article had the opportunity to present the problem, among other related issues, at the Council of the European Union in October 2023,[10] within the context of the Horizontal Working Party on "Drugs".[11]
3 Possible Criminal Offences for "Petaqueo".
The legal types of crimes under the current version of the Criminal Code (CC) that will be explored are the following: against public health, smuggling, criminal damage, belonging to a criminal organisation, against road safety, possession of inflammable substances and against the environment.
3.1 Crime against public health.
It is important to note that in this type of criminal offence and for the matter in question, "it is not possible to apply the figure of the necessary cooperator, given that any person who collaborates with an act without which the act would not have been carried out will be considered a co-perpetrator[12] for the purposes of the conduct typified in Article 368[13] CC", Article 27 of the CC also recognises the criminal liability of accomplices. Thus, Article 29 defines complicity as any cooperation in the execution of the act by prior or simultaneous acts (Lluch Ram rez, 2016, p gs. 13,14).
But, "it seems to be widely affirmed by the jurisprudence,[14] that, in order to obtain convictions for crimes against public health, narcotic substances linked to the alleged perpetrators of the crime must be seized" (G mez Fuster, 2021, p g. 21).
Therefore, an individual who carries out a logistical activity to a drug boat from which drugs are seized is the author of a crime against public health, which is included in the crime of promoting, favouring or facilitating the illegal consumption of intoxicating drugs.
The problem lies in the fact that it is difficult to link "narco-petrol" with drugs, as the Chief Prosecutor of Algeciras, Jacobo Cisneros Prado, reports.[15] In fact, at the beginning of 2019, Guardia Civil[16] began operations called Manilvagas and L neagas, centred on the border area of the provinces of M laga and C diz and the municipality of La L nea de la Concepci n respectively, with the aim of investigating the "petaqueo" (G mez Fuster, 2021, p gs. 44, 45).
Regarding Manilvagas, in Marbella, the prosecutor considered the police report to be complete and had no doubt that the semi-rigid vessels under investigation were involved in drug trafficking, and that the individuals who carried out the logistical actions were co-participants in the crime. However, the prosecutor also considered that, in order to sustain the charge of the crime against public health, the seizure of drugs was necessary. The Lineagas operation,[17] met the same fate as Manilvagas (G mez Fuster, 2021, p g. 39).
It is not a problem of the "CC, nor of guidelines," points out Juan Cisneros, Chief Prosecutor of the Algeciras Area. It is a problem of evidence; it would have to be proved that this petrol is destined for drug trafficking. So it would be a crime, but proving it is difficult. So much so that, he claims, there are no drug trafficking cases based solely on a supply of "narco-petrol" (Garc a Serrano, 2019).
In 2020, Jes s Narciso N ez was asked by a journalist if he considered it appropriate that possession and/or possession of fuel intended to supply drug traffickers was a drug trafficking offence, and not a mere administrative offence, to which he replied "we have presented a proposal in this regard to the Ministry of Home Affairs" (Chaparro, 2020).
"Asked whether the Ministry of Home Affairs was receptive, the Colonel replied that "the Minister [Fernando Grande-Marlaska] is a jurist, and is aware of the problem." He added that "there is the difficulty of legislating at a national level on an issue that only exists in one part of Spain" (Chaparro, 2020).
The anti-drugs coordinator also claims that the "narco-market for petrol supports a fundamental part of the activity of illegal networks with large profits in black money and minimal legal repercussions" (Rodr guez, 2021).
As mentioned in the introduction, the Deputy Anti-drug Prosecutor of the Provincial Public Prosecutor's Office of C diz-Ceuta and Coordinator of Andalusia is working along the same lines with regard to proposing a possible criminalisation of "petaqueo" through the annual reports of the Attorney General's Office (FGE), something which, due to circumstances, has not yet borne fruit (Villag mez Mu oz, y otros, 2023).
3.2 Crime of smuggling.
It should be noted that "Organic Law 12/1995 of 12 December, on the Suppression of Smuggling" is a special criminal law, and Article 2 lists the different conducts that are considered a crime of smuggling.
Point two states that the crime of smuggling is committed when the value of the goods, merchandise or effects is equal to or greater than 150,000 euros; 50,000 euros in the case of prohibited or stalled goods, by those who carry out any of the following: import, export, trade, possession and circulation operations, without complying with the requirements established by law." (Official State Gazette)
There is no precedent known to the author of this paper in which "the petaqueo activity" has been convicted as a crime of smuggling offence, unless it is related to another activity. In fact, in the electronic publishing house "Sepelin", one can read an article with the following text: "it is common to find sentences that punish for crimes of smuggling, for example, of tobacco or petrol," to which the following question was left in the article's forum: "Do you have any convictions for the crime of petrol smuggling?", and a communication was received indicating that in fact they are not aware of any convictions for petrol smuggling" (Guimer Ferrer-Sama & Arcas Ruz, 2020).
There are police prosecutions where "petaqueo" is criminalised as a crime of smuggling, but so far they have little prospect of success. See a footnote article.[18] As indicated by different prosecutors and police commanders who, after the operations, follow up on the final result of these police actions, in the judicial phase these proceedings do not bear fruit and end up being shelved, unless there are other related crimes.
3.3 Crime of belonging to a criminal organisation
"A criminal organisation is understood to be a group formed by more than two persons on a stable basis or for an indefinite period, who in a concerted and coordinated manner divide up various tasks or functions with the aim of committing crimes. "Petaqueo", as discussed in chapter two, is a practice that is part of the logistical apparatus of drug trafficking operations." Pursuant to Article 570 bis.[19] 1. of the current CC, "petaqueo", could perfectly well be subsumed under the criminal offence of belonging to a criminal organisation.
But for this to happen, the petrol must be part of a related crime and the prior existence "in this case" of the drug, related to the organisation in charge of the "petaqueo" logistics, must be proven. While it is not normally difficult to prove the principal offence of drug trafficking,[20] "when the drugs are seized", it is a different matter to charge a crime against public health or belonging to a criminal organisation, for "petaqueo", without a direct link to a drug seizure having been proven.
3.4 Crime of havoc - other risky crimes caused by explosives and other agents
Continuing with the dynamics of the work, another option would be to include the illicit act of "petaqueo" within "other crimes of havoc", included in Article 348 of the current CC, something that the author of this article has discussed with different prosecutors, and none of them[21] has considered that there is a specific case of danger, since the danger that occurs during the "petaqueo" is a general or abstract danger, and while an episode of specific danger is not accredited, this criminal type[22] (STS 538/2000) could not be applied (Jim nez D az, 2017).
We are talking about the illegal handling and storage of fuel, without even the slightest respect for any safety standards, risking the population in the areas or surrounding the places where this accumulation and storage of potentially dangerous substances takes place, says the specialist in criminal law (Comendador Garc a, 2021), when advocating for the application of Article 348 to the phenomenon in question.
The media and society in general echo the situation, producing publications of the type described below: "Narco-petrol as a crime: the eternal claim remains unresolved," adding the president of the Coordinadora Comarcal Alternativas,[23] Francisco Javier Mena de Mira as follows: A way out has to be found, "Before there is a misfortune on a road with a van loaded with jerry cans or in a house in the Comarca. One day we will regret it, when he refers to the danger posed by the petaqueo" (Rodr guez, 2021).
During an interview with Chief Inspector David S nchez Bl zquez, Head of the Police Brigade of the La L nea de la Concepci n Police Station (CA), he reported that all the arrests made for these acts, charging the crime of destruction, have been shelved in the Courts, so it can be determined that the application of this type of crime to the conducts studied is not effective (G mez Fuster, 2021, p g. 24).
Chief Inspector Carlos Hern ndez Alonso[24] , assigned to the Local Police Station of the National Police in La L nea de la Concepci n (CA), with the function of Head of the Local Citizen Security Brigade, stated that numerous actions had been carried out and that he had been charged with the crime of havoc due to the storage of large quantities of petrol in homes, with the risk posed by the storage of petrol in closed places without ventilation and in blocks of flats where a large number of neighbours live. However, the judicial process has been short, as although the cases have been followed up in the investigating courts, once the report has been submitted to the Public Prosecutor's Office for prosecution, the proceedings have been shelved and dismissed.
During an interview with the Hon. Mr Deputy Prosecutor for Road Safety (FDSV) of the province of C diz[25], on the viability of including the conduct of "petaqueo" in the criminal offence of "havoc", informs the author of the article and interviewer that: "The conduct fits better into Art. 385 CC (crime against road safety) as it is a criminal offence of abstract risk.
3.5 Crime of creating a serious risk to road safety
The case in question may also involve a crime against road safety subsumed under Article 385 of the CC "crime of creating a serious risk to road safety,[26] "Whoever creates a serious risk to traffic by placing unforeseeable obstacles on the road, ... or by any other means." This result is none other than to make the circulation seriously unsafe, that is to say, to introduce elements of danger in the circulation of vehicles for other road users" (Wolters Kluwer) "considering, the crime of endangering, as set out in Article 385 CC to be a crime of abstract danger" (S nchez lvarez, 2017) "in this precept that punishes conduct which seriously endangers road safety, without the need for an injurious result"[27] (Wolters Kluwer). On the legal nature,[28] concurrence with other offences,[29] etc., (see footnote). "In this case, it would be used when "narco-petrol" is transported, not only in violation of, but in total disregard of safety measures," and thus damaging the road system. Indications provided during the interview to the FDSV in Cadiz.
Article 385 of the CC effectively fulfils a residual function of subsuming behaviours that cannot be included in the other crimes against traffic safety.[30] (Iberley, 2021b)
On the other hand, the opinion of the Chief Prosecutor of the Algeciras Area, Juan Cisneros, was sought in relation to the legal efficacy on the indictment-investigation of providing a series of technical reports,[31] with the following assessment being given: "Being able to calculate the effects of a risk does not add a plus. Such an interpretation would require a return to the configuration of imprudence that existed in the 1973 CC,[32] where an abstract type of imprudence was provided for, in which any behaviour that violated the basic rules of care could be included. Today, however, it is not possible to make such a reproach without breaching the principle of legality.
Something that encouraged some hope about the criminal type dealt with, was the following contribution to the author by the FDSV, "The application of Art. 385.1 CC for the case of "petaqueo", was raised at the December 2019 meeting of Prosecutors of Andalusia,[33] and caught the attention of the Prosecutor of the Road Safety Court, Bartolom Vargas."
Mr FDSV adds, following a question[34] during the interview, that: "under certain conditions, the transport of fuel with a complete absence of the safety measures established by the rules governing such activity and those affecting the people who carry out the transport and the vehicle used, may constitute a criminal offence that fits into Art. 385.1 CC when a serious risk to road safety is created; the conduct may also constitute a crime of reckless driving under Art. 380 CC if a person is specifically endangered, since the creation of such a risk involves an attack on the protected legal right[35] in the criminal field collective safety and through it the life and physical integrity of people and in such a case, the behaviour is criminal."
On another question, the FDSV suggests that "for the requirements of the principle of culpability, as Art 385 is not a crime that admits recklessness, it is necessary that the active subject is aware and willing of the serious risk created by the transport of petrol under these conditions. The criminal offence allows its commission by fraudulent intent."[36]
The FDSV of C diz was asked whether it was aware of any guilty verdicts in relation to the phenomenon of "petaqueo", and stated that: "After examining the jurisprudence of the Supreme Court and Provincial Courts and discussing it with fellow prosecutors, he has been unable to find any judgment or order that addresses this problem from the point of view of road safety offences."
However, there is no doubt that this activity constitutes a real threat to public security, as the following case study has shown: "A minor was arrested in Los Barrios who was driving a van loaded with petrol for drug traffickers. He crashed into a wall while fleeing at high speed from the GC and the local police; the participation of minors in the logistical apparatus of the drug traffickers in the Campo de Gibraltar continues to increase" (Fern ndez S. , 2021).
At this point, when questioning whether Spanish substantive law has sufficient capacity and structure to constitute an adequate legal tool for prosecutors, judges, and FCSs to combat the phenomenon of "petaqueo and narco-petrol", the FDSV interviewed agreed that Article 385 CC could be applied to transport in motor vehicles, something not shared by the majority of his colleagues, which is why it seemed more appropriate for the legislator to consider the introduction of a criminal offence that contemplates such conduct.
3.6 Crime of possession or deposit of explosives flammable substances
Article 568[37] of the CC deals with a type of crime which, although it may be similar, in terms of the actions it describes, to Article 348 of the same legal text, given that both refer, among others, to the possession, manufacture and transport of explosive, flammable and asphyxiating substances, the former presents a note that makes it different, and that is the absence of prior authorisation to carry out such activities. (Audiencia Provincial Madrid - Sentencia: 00574, 2009, p g. 15). It is an abstract danger, different from Article 380 of the CC, which is a type of concrete danger, like Article 348 of the CC.
Although this is something that the author had never considered; taking into account the large quantities of fuel involved in the "petaqueo", its storage conditions, level of danger, etc., some authors do understand that the behaviour could be a clear violation of Art. 568 CC, (Comendador Garc a, 2021) which, under the principle of proportionality, Mr FDSV, mentioned above, considers inapplicable.[38] Similarly, the Chief Prosecutor of the Algeciras Area did not see it as viable either "due to its systematic location."
Notwithstanding the above, the FGE, in its 2022 report, which was published in 2023, has finally proposed as a legislative reform, the criminalisation of the transport and storage of liquid fuels predetermined for drug trafficking (Fiscal a General del Estado, 2023, p gs. 1209, 1210), with the proposal to include it in Article 568 CC, with the corresponding amendments, such as the introduction of the phrase "with manifest recklessness," as in Article 380 of the current CC.
With regard to the reference in Article 568 to "blank criminal law", the FGE proposes replacing the current reference consisting of "not authorised by law or the competent authority" with another, a priori more effective one, used in other criminal offences contravention of laws or other general provisions and advocates incorporating a new heading in which a single transport or storage of petrol in excess of legal limits is considered manifestly reckless, as often as deemed appropriate (Fiscal a General del Estado, 2023, p gs. 1209, 1210).
In fact, the Deputy Anti-drug Prosecutor of C diz-Ceuta and Coordinator of Andalusia, Ana Villag mez, in an interview[39], testified to the author of this article that, after the implementation of the corresponding change in legislative wording, she is committed to including these conducts in the text of Article 568, and indicated that the initiative shows signs of viability and that it is currently under study by the Ministry of Justice itself.
The Public Prosecutor is in favour of introducing a specific criminal offence, which has been demanded for years, but in the meantime, the inclusion of these behaviours in the text is being studied.
When asked whether she was aware of any judgments which had been charged with the phenomenon of "petaqueo" where the investigation of the case had been approached through this type of criminal offence, she indicated that to date and with the current wording of Article 568, she was not aware that this had happened, but currently charges have already been brought in four recent cases, which are being investigated.[40]
3.7 Crime against natural resources and the environment Crime of waste shipment
It has to be considered that "narco-petrol", when transported without an invoice, unknown origin, octane number, etc., is no longer marketable and therefore becomes waste. In this case a hazardous waste according to the European Waste List (EWL). This was agreed in an interview with Joaqu n Caballero Valc rcel, who in 2020 was in charge of the Waste and Land Quality Service in the province of C diz, and who in 2021 provided official communication as head of that service, but now in charge of Andalusia, a position he still holds today.[41]
Article 326.2 of the CC[42] punishes those who: "in contravention of laws or other general provisions, collect, transport, recover, process, dispose of or use waste..., requires the shipment of a not inconsiderable amount of waste[43] . The Ministry for Ecological Transition and the Demographic Challenge (MITERD) accepts the criterion issued by the Austrian Federal Ministry of Agriculture and Forestry, Environment and Water Management,[44] consulted on the matter by the Central Operational Environmental Unit (UCOMA) of the Seprona Headquarters, of the General Directorate of Guardia Civil, indicates that this criterion is not applicable[45] only for waste exported to third countries.
The FDSV of C diz, which was interested in the applicability of this type of criminal offence to the subject under discussion, stated that it considered that: " it is too much of a stretch for petrol to be a waste product for these purposes. It seems that the consideration of this petrol as waste is given a posteriori, when it is not possible to determine its exact composition and therefore it cannot be given a legal destination," something which was also shared by the aforementioned Chief Prosecutor of the Algeciras Area.
Figure 9.
Containers
of "narco-petrol". One of the closed containers that appeared on the
coastline of Torre de Benagalb n. SOUTH
It is the only one of all the criminal offences described above that has not been applied by the FCS. At least as far as the author of this article is aware, however, an illustrative headline at the bottom of the page[46] illustrates the environmental problems posed by this phenomenon, which is a clear example of how "petaqueo" is spreading along the southern coast of Andalusia and how it is a threat to the environment, among other things.
4 Comparative Law between the Colony of Gibraltar and the Kingdom of Spain.
Figure 10.
Jerry
cans seized by the Royal Gibraltar Police.
In the context of an interview with the Royal Gibraltar Police command staff,[47] it is known that: they suffer the same problem with "narco-petrol" as the national territory, and they are tackling it with regulation number 4830 of 4 March 2021, link available at the foot of the page.[48]
No more than 20 litres of petrol may be held or transported, although with a special authorisation a maximum of 100 litres may be held in a warehouse. Since 2021, non-compliance with this rule has been classified as a criminal offence.[49] Quantities, which the Special Anti-drug Public Prosecutor's Office proposed to criminalise through Article 568 in its annual report for 2022, (Fiscal a Especial Antidroga, 2022, p gs. 37, 38)which the author of the present article has already advanced in a publication (Arcas Ruiz, 2022, p g. 31).
As an example of Gibraltar's determination in the face of the phenomenon that is the subject of this article, the press articles are set out below.
Figure 11.
The
Government of Gibraltar proposes tougher penalties for possession of fuel drums
In Gibraltar, they are in no doubt that by attacking "petaqueo", they hit drug trafficking. "It is clearly linked," the government of the Colony argues (Europasur Gibraltar, 2022).
In Spain, the jurist Manuel Rodr guez Monserrat, researcher and professor of Criminal Law at the University of Cadiz, believes that it is going too far to "criminalise 'petaqueo' without a direct link to drug seizures." The researcher and professor argues that "having large quantities of fuel can be an indication of another crime, supplying petrol and thus facilitating drug trafficking, but he believes that turning this indication into a criminally prosecutable act in itself entails a risk to individual liberties" (Almoguera, 2021).
The Coordinadora Comarcal Alternativas points out, as it has been repeatedly claiming and making a comparison, that in Spain the "narco-boats" were banned, and this was done after more than twenty years of being carried out in the Colony of Gibraltar. It is well known that the banning of "narco-boats" in Spain in 2018 was an important change in the fight against drug trafficking, which did not go unnoticed on social media[50] (Quino L pez., 2018).
It would seem that it would take more than 20 years for Spain to adopt the measures that were adopted in the colony of Gibraltar in 2021 with regard to "narco-petrol", something that has already happened with the narco-boats.
5 Should "Narco-petrol" and "Petaqueo" be Criminalised?
Manuel Rodr guez Monserrat, researcher and professor of Criminal Law at the University of Cadiz, considers the proposal to criminalise "narco-petrol" to be controversial, and believes that it should not go beyond the condition of "criminal evidence," arguing that Royal Decree-Law 16/2018 of 26 October criminalised the semi-rigid vessels used by drug traffickers, and that an attempt was already made to criminalise the possession of petrol with the same strategy, and to bring forward the action of Criminal Law through the so-called possession offences (Rodr guez Monserrat, 2021).
The researcher and professor argues that the possession of large quantities of petrol may be circumstantial evidence, but in relation to the above-mentioned proposals, in no case should a new offence of possession be constituted (Rodr guez Monserrat, 2021); a line of argument is based on the fact that it must be borne in mind that criminal law does not protect all legal assets in an absolute manner, but forms part of a harmonised and cohesive set of rules that makes life in society possible.
In an interview with the Chief Prosecutor of the Algeciras Public Prosecutor's Office, Juan Jacobo Cisneros, he clarifies that the difficulty in linking "narco-petrol" with the criminal activity of promoting illegal drug consumption is very simple. His reply was as follows: "Petrol is a legal commodity, its trafficking is permissible, and it is present in many aspects of everyday life. When this happens, the criminalisation of behaviours targeting it is complicated.
On the other hand, opinions in favour of criminalisation have already been expressed by actors other than those mentioned in this chapter.[51]
6 Conclusions.
In order to bring in hashish via so-called 'narco-boats', large quantities of petrol are required. This fuel is transported by sea and by road in containers of thousands of litres, under non-existent safety conditions, without the slightest respect for any regulatory standards. Similarly, it is stored in homes, garages, premises, etc., thereby creating a risk that is difficult to find criminally reprehensible. This lack of value should be a criminal offence, surpassing the administrative offence.
The press is aware of the situation and the lack of reproach by the various public administrations, and publishes the following: Arrests are resolved with the payment of a fine for a mere administrative penalty" (Europasur Campo de Gibraltar, 2021), which in most cases cannot be paid, as the accused are usually insolvent and the premises for their storage or the means used for their transport by land or sea are usually in the name of third parties.
Gibraltar was a pioneer in "banning narco-boats in 1995. In Spain, the Council of Ministers approved a Royal Decree-Law in 2018 banning these high-speed vessels, but 23 years later" (Rodr guez, 2021). In this case, "with regard to petaqueo", the British colony has again been one step ahead.
"In Spain, the FCS observes with a certain "envy" the Gibraltarian legislative initiatives" (Moreno, 2021), "as does the Coordinadora Comarcal Alternativas"[52] (Rodr guez, 2021).
1. How complicated it is to link narco-petrol to drug trafficking.
2. The almost absolute impossibility of incorporating these behaviours into the current articles of the CC (Fiscal a General del Estado, 2023, p g. 1209).
As NIUS publishes,[53] "narcos like petrol", "This need for petrol is currently one of the keys to the fight against drugs" (Garc a Serrano, 2019).
"The bottom line is that, if it cannot be reliably proven that the seized fuel narco-petrol is going to be or has been used for a narco-boat loaded with drugs, it is not currently a criminal offence. For the 'petaqueros', it means earning thousands of euros in a short time, and as they have no income, no job, no assets, they go unpunished when administrative channels are used" (Pressreader, 2021).
Legislating to criminalise "petaqueo" finds opposing opinions between those who favour effectiveness in the fight against drug trafficking, and those who consider the maxim of "minimum intervention of criminal law," also known as the principle of the last resort. Moreover, it seems that legislating at the national level, on a phenomenon that is only suffered in a part of the national territory, and with respect to a legal good of daily and general use such as "petrol", makes it difficult for this to happen.
The reasons for a possible regulatory change would focus on two objectives:
First: taking action before what has already been reported and published in the press as "a disgrace" with "narco-petrol" stored in premises in an irregular manner and with a high rate of surrounding dwellings, or on the road transporting it on a stretch of road with high occupancy.
Second, providing essential logistics to the organisations responsible for smuggling hashish into Europe via the Spanish coast.
7 Proposal
It is the opinion of the author of this article to make "petaqueo narco-petrol" an autonomous crime.
This autonomous crime could be classified as a crime of smuggling, in this case, a crime of possession, and avoid the concurrence of rules or absorption of the crime of "petaqueo" into the drug trafficking crime, as is the case with the proceedings instituted for smuggling of prohibited goods with respect to "narco-boats", this being an autonomous crime included in "Organic Law 12/1995 of 12 December on the Suppression of Smuggling, in relation to Royal Decree-Law 16/2018.[54] The amount of fuel to be considered an offence should be studied. The author of this article chooses to establish the limit of petrol that would be typified by the limit set out in various administrative regulations cited in the scientific article "Narco-petrol, a challenge for public safety. Policing from an administrative perspective. Notebooks of Guardia Civil (67), 7 37" (Arcas Ruiz, 2022). Namely: 240 litres in the Land Transport Ordination,[55] or 200 litres in the law on Excise Duty[56]. All of this, taking into account the risk to human life and the environment, and assessing the devaluation exercised against the current risk prevention regulations in the transport, possession, etc., of dangerous goods and in general.
Such a legislative reform could further complicate not only the trafficking of hashish from North Africa, but also the fact that this infrastructure is used for human trafficking[57] and cocaine trafficking.[58] These facts are not subject to opinion or the result of privileged information, as they are available in open sources, such as the following: (Canal Sur Radio y Televisi n, 2018), (La Vanguardia, 2021), (Almagro Duro, 2023), etc.
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